magistrates' court. They may assume that the local authority will withdraw the notice if an appeal is threatened, particularly since the. Court of Appeal has now ...
Article
Env. Law Mgmt., 12(2) Mar±Apr 2000
LOCAL AUTHORITY DISCRETION IN SERVING STATUTORY NUISANCE ABATEMENT NOTICES1 JOHN POINTING,
Barrister, Field Court Chambers, 3 Field Court, Gray's Inn
Local authorities have limited resources to enforce environmental legislation; many go out of their way to avoid prosecuting statutory nuisance offenders. Businesses causing such nuisances may comply with legal requirements and may agree the wording of a notice to be served upon them by the local authority. Such compliance is by no means universal. The legal advisers of many firms upon whom notices have been served will almost automatically recommend appealing them to the magistrates' court. They may assume that the local authority will withdraw the notice if an appeal is threatened, particularly since the Court of Appeal has now decided that the local authority has an implied power to withdraw an abatement notice.2 The legal framework for statutory nuisance enforcement ± Part 3 Environmental Protection Act 1990 [EPA] ± is flawed and outdated and beyond the reach of revision by case law. Local authorities are placed in a difficult position when it comes to enforcing Part 3. There are serious issues of inconsistent enforcement and under-enforcement, which can only encourage incompetent and/or irresponsible businesses to flaunt the statutory nuisance provisions in the EPA and penalise those striving to reach acceptable solutions to problems.3 What is the scope of local authority discretion to serve and enforce abatement notices using their powers under section 80 EPA? A number of recent decisions in the Divisional Court and the Court of Appeal have striven to clarify matters. The decisions are inconsistent.4 Judges, legal practitioners, environmental health officers and the public are entitled to be confused at the directions taking in recently decided cases. Environmental health officers responsible for enforcing the Act continue to be unsure about what type of notice they should serve under section 80. If a local authority decides to serve a notice to combat industrial noise ± persistent low frequency Copyright # 2000 John Wiley & Sons, Ltd.
noise from a factory, for example ± should it serve a simple ``abate the nuisance'' notice or specify in the body of the notice what works are required to restrict the noise? Part of the problem is that the higher courts ± those able to provide an authoritative and binding ruling with respect to subsequent decisions ± are confined to the particular matters forming the subject of the appeal. It is unrealistic to expect the courts to resolve a legislative mishmash.5 Detailed guidance in the form of a statutory code of practice is needed. Existing secondary legislation6 is very limited: concerned with such matters as specifying the grounds of appeal, service of notices and the powers of magistrates' courts to dispose of appeals or amend section 80 notices. There is silence on such matters as enforcement policy, on procedures and guidance for drafting abatement notices ± whether generally or in respect of particularly difficult areas, such as industrial noise and odour nuisances. The wording of the statute appears to give the local authority a discretion to choose which type of notice to serve upon the perpetrator of a statutory nuisance. Section 80(1) states: ``Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur . . . the local authority shall serve a notice . . . imposing all or any of the following requirements ± (a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; (b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes'' (my italics). Discretion is confined to the form the notice takes. Once the local authority has satisfied itself that a statutory nuisance exists or might 71
Article recur, then it is required to serve a notice.7 Any decision not to do so will be subject to judicial review.8 No court can substitute its own discretion for a decision which is for the local authority alone; the court's powers in an appeal are limited to dismissing the appeal and to quashing or varying a notice in the recipient's favour.9 However, what is the position when the local authority believes that a statutory nuisance exists, but it is not at all clear what measures are needed to abate or restrict the nuisance? Can the local authority simply tell the recipient of the notice to abate the nuisance without specifying what steps need to be taken and/or what measures need to be put in place? The answer, if there is one, to the difficulties depends on the particular characteristics of the nuisance. This advice may be no more helpful than the apparently runic answer of Lord Chief Justice Erle, who, when considering the scope of private nuisance in the 1860s, opined: ``The answer to the question: What is a nuisance? is immersed in undefined uncertainty.''10 Considering, then, the characteristics of a statutory nuisance, Kirklees v Field and Others11 is a recent Divisional Court case in which action was clearly required to deal with the nuisance caused by the imminent collapse of a rock face onto a row of cottages. Owen J decided that a notice specifying the works required should have been served by the local authority on the various owners of the properties affected. Serving a simple abatement notice was wrong in this case since the notice: ``must inform the (recipient) of what is wrong and must ensure that the (recipient) knows what is required in order to correct it, which may require specification of the works required. If the notice did not meet these two requirements . . . the notice would be invalid [at 337].'' The thinking here was influenced by the requirement for certainty in what the recipient needs to do to keep to the terms of the notice; the court being mindful that a notice, where breached, paves the way for a prosecution. Owen J concluded that where there is any doubt whether works are required, then the notice should specify the steps or works required rather than rely on a simple ``abate the nuisance'' formulation. In other words, deciding which form of notice to use in section 80 is not a simple matter of choice 72
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for the local authority: the type of nuisance dictates the response. Authority for the line taken in Kirklees can be seen in earlier cases such as Network Housing Association v Westminster CC12 and Salford CC v McNally.13 Network Housing was a case in which the cause of the nuisance was also the condition or state of the property, though here it was the lack of effective sound insulation in the boundary space between flats which caused noise nuisance. Again, the court found that if works are required then specification of those works needs to be contained in the body of the notice.14 The nuisance could not be dealt with by serving a simple ``abate the nuisance'' notice requiring occupants to be very quiet, as ordinary living entails making a reasonable amount of noise. Buckley J [at 83] made the following distinction between the two forms of notice: ``. . . in some obvious cases a notice requiring little more than that a certain result be achieved might suffice. In the circumstances of this case, which involves a notoriously difficult question of sound levels and nuisance, I consider that the (council) should have made up their own minds as to the work required and stated (it) in the notice.'' It is arguably a matter of law as well as good practice that the notice should be drafted in as specific a manner as possible. There is House of Lords authority for this proposition ± namely Salford CC v McNally15 ± an oft ignored case, in which Lord Wilberforce stated [at 864] that the court, in making a nuisance order under the 1936 Public Health Act: ``. . . should, if possible, make this as specific as (it) can, rather than order in general terms to abate the statutory nuisance.'' I am reasonably confident in coming to the conclusion that for statutory nuisances which can only be abated or restricted if works or steps are needed, the local authority is obliged to specify such works or steps, with sufficient particularity to enable the recipient of the notice to know how to keep to the right side of the notice. But, the reality is that many cases of statutory nuisance are not clear-cut and can be resolved either by carrying out works or by ceasing the activity which causes the nuisance. The Kirklees situation ± where ceasing the activity that causes the nuisance cannot be an alternative solution to undertaking works ± is actually quite unusual. Copyright # 2000 John Wiley & Sons, Ltd.
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Noise and odour problems are examples where it is possible to argue that a simple abatement notice will invariably constitute an alternative solution to a requirement to undertake works. Industrial noise and odour nuisances often require expert advice as to how they may be abated or restricted: advice that will also be required in drafting a specific works form of notice.16 It will sometimes be the case that there is no technical solution available to control a nuisance further ± perhaps all reasonable abatement steps have already been taken yet the nuisance remains. In hard cases experts will often disagree as to what should be done to restrict the problem. Arguably, in such cases it would be unfair to the recipient of a notice to require abatement without specifying how this should be achieved, since this would mean ceasing to perform at least a part of his commercial operations. The recipient of a simple abatement notice in this predicament would be well advised to appeal. The courts ought to be sympathetic to allowing an appeal on the grounds that the notice was vague or unreasonable in the circumstances. Is it lawful to require a ``nuisance offender'' to stop causing the nuisance and leave it up to him to decide whether to cease the activities causing the nuisance or to undertake works to restrict it? The answer to this would seem to be ``yes'', at least in certain circumstances. The Court of Appeal in SFI Group v Gosport BC17 recently upheld the validity of an entertainment noise notice in which the recipient was told: ``to cease the playing of amplified music at levels which cause a nuisance at neighbouring premises''. The problem could have been dealt with had adequate sound insulation to the windows been installed and in this case the recipient of the notice had been willing to install them. The Court of Appeal accepted the argument of Mance J in the Divisional Court18 that where the local authority have a choice of remedy, involving either simple abatement or works, then they are entitled to exercise that choice by serving either form of notice. In Budd,19 a case heard shortly before SFI Group v Gosport, the Court of Appeal decided that where the notice recipient had available several ways of dealing with noise nuisance from barking dogs, it was sufficient for the local authority to serve a simple abatement notice. It was felt that it would be reasonable to leave to the person served with the notice Copyright # 2000 John Wiley & Sons, Ltd.
Article the power of deciding how noise from the dogs should be abated. The Court of Appeal in Budd accepted that the way the local authority drafted its notice depended on the circumstances; more worrying it also found no ``divergence or conflict between the decided cases'' [at 717]. How widely then can the SFI v Gosport judgment be applied? It should be noted that Mance J in the Divisional Court below ± whose reasoning would seem to have been adopted by the Court of Appeal ± had fully considered old cases and recent ones, including Kirklees,20 Sterling Homes,21 Network Housing22 and Budd23 (in the Divisional Court). Going back to industrial nuisance ± cases which are notoriously difficult to resolve and which pose considerable difficulties for the local authority in terms of specifying the works required ± it would appear that all the local authority need do is to serve a simple abatement notice. Justification for this view can be found in Sterling Homes v Birmingham City Council,24 where McCullough J stated (at 133±34): ``It may clearly be helpful if local authorities feel able to specify what works should be done or what steps should be taken, but I see little advantage in obliging them to do so. As the law stands, local authorities are not, in any event, obliged to require works to be done or other steps to be taken; they can, consonant with R. v Wheatley,25 simply require the nuisance to be abated . . . the obligation to specify the `works' and the `steps' only arises if they choose to include in their notices a requirement for works to be done or steps to be taken'' (my italics). It is submitted that there is a clear conflict between the Kirklees and SFI v Gosport decisions, which the Court of Appeal did not resolve in the latter case and may not even have appreciated. The Court of Appeal seemed to accept without consideration of the implications the ingenious argument of Mance J in the court below.26 Mance J [at 375] reconciled the decisions in Kirklees and Sterling Homes on the basis that in Sterling Homes the notice recipient was not the owner or the operator of the press causing the noise, but the owner of the residential block housing the residents who suffered the nuisance. Further, it was the lack of sound insulation which caused the statutory nuisance and not the operation of the press. Since the owner of the residential block could not control the operation of the press, he had to undertake works to deal with the nuisance; therefore service of 73
Article a simple abatement notice would have been inappropriate and therefore these cases are not distinguishable because works were required in both. Perhaps the Divisional Court in Sterling Homes was concerned to find a practical solution and was particularly sympathetic to the plight of residential occupiers. However, it is submitted that the Court of Appeal decision in SFI v Gosport raises more problems than it solves and could lead to serious injustices. This decision implies that where there is an alternative to undertaking works, the local authority can, if it chooses, decide to serve a simple abatement notice. This would apply not only to entertainment noise but also to noisy dogs,27 or to noisy neighbours. This is unsatisfactory in many situations where it would be unreasonable or unfair to serve a simple abatement notice, for example because the solution to the problem is complex or where no-one can come up with a practical solution. Also, a simple abatement notice may be excessive or unreasonable because it threatens dire financial consequences for a commercial, industrial or business concern. However, one can envisage circumstances in which it would not be unreasonable to serve a simple abatement notice on an industrial or commercial concern. For example, an undertaking may be causing a nuisance that is not technically difficult to resolve, or there may be an unwillingness to spend money to install plant that would be sufficient to reduce the nuisance. SFI v Gosport, superficially attractive though it might be to local authorities, may well turn out to be a blind alley and encourage litigation. This is because it fails to provide any indication of the circumstances when serving a simple abatement notice might be justified and those when it would be unreasonable. Recipients of simple noise abatement notices who run commercial enterprises are likely to be advised to appeal them on the grounds that they are excessive or unreasonable28 or, in appropriate cases, a best practical means defence can be run in an appeal.29 At present, enforcement authorities are confused about when to serve simple abatement notices. Many will be encouraged to use them more frequently because there is now an implied power to withdraw a notice.30 What issues can be anticipated if abatement notices increasingly are served and then withdrawn? 74
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One problem is that unless the service of the notice was negligent, there would appear to be no mechanism whereby the recipient of a notice that is subsequently withdrawn by the local authority can claim any costs from the magistrates' court. The position on entitlement to costs is not clear even where a notice is withdrawn after the recipient lodges an appeal. This is because the magistrates' courts have no jurisdiction to hear the case since there is no notice in force forming the subject of appeal. At present, local authorities may be tempted to serve on the occupiers or owners of industrial or business premises simple abatement notices in the anticipation that recipients will offer a less restrictive and specific form of notice. This might occur after the recipient had commissioned and paid for expert advice on how to reduce the nuisance. Effectively, this leaves it up to the notice recipient to decide how the nuisance should be abated; arguably this means that the local authority has not properly made a decision under s. 80(1) of the Act, since it has confined itself to considering only its s. 80(1)(a) powers, i.e. simple abatement or prohibition. However, in Budd31 the Court of Appeal rejected the submission that a local authority was under a duty to fully consider all its powers under s. 80(1) before making a decision about which type of notice to serve. But, of course, the nuisance in Budd was comparatively simple and concerned the keeping of dogs. Industrial noise and odour nuisances cannot, generally, simply be resolved by serving a simple abatement notice, since such action would often be unreasonable. On the other hand, where the local authority refused to withdraw the notice, the magistrates hearing any appeal could vary it in the appellant's favour if the appellant's alternative solution to the problem was acceptable to them. In these circumstances the appellant would be entitled to his costs. These costs anomalies also may tempt local authorities to serve notices only to withdraw them if challenged ± a practice amounting to what might be termed a ``bad faith enforcement regime'', which is encouraged by the present dearth of regulations and codes of practice.
Conclusion Recent decisions of the higher courts have not helped achieve consistency or clarity in the Copyright # 2000 John Wiley & Sons, Ltd.
Env. Law Mgmt., 12(2) Mar±Apr 2000
statutory nuisance field and the magistrates' courts would do well to clear their decks for a spate of appeals. Businesses producing entertainment noise risk losing their appeals in the light of the SFI v Gosport decision, and all businesses run the risk of doing so if courts conclude that it has a wide application. What is to be done? Rather than leaving cases encompassing complex forms of nuisance, such as industrial noise and odour nuisance to judges to sort out, what is immediately required are detailed regulations and central government guidelines on enforcement. Despite what judges have maintained in cases such as Budd and Kirklees, there is conflict between recently decided cases. Moreover, there is a lack of decided authority regarding the most difficult forms of nuisance, such as industrial noise. Particular consideration needs to be given in secondary legislation and codes of practice to problematic areas ± especially industrial noise and odour nuisances. Neighbourhood noise continues to provoke a high volume of complaints to local authorities.32 The law in this area covers other legislation than statutory nuisance and consolidation is needed. Light nuisance, which is outside the present categories of statutory nuisance, is another area of concern.33 Reform needs to go beyond the substantive law. The system of prosecution of nuisance offences needs critical examination, especially consideration of the jurisdiction in which cases are heard. Magistrates' courts are a wholly inappropriate jurisdiction to hear appeals or to decide prosecutions in regulatory enforcement.34 The inadequacy of the venue becomes embarrassingly obvious in complex nuisance cases and where magistrates have to consider expert evidence. Finally, the issue of who pays for expert opinion on the measures required to restrict nuisances ± the local authority or the ``nuisance offender'' ± needs to be decided, together with when can the local authority oblige the industrial noise offender to have a noise survey (or other expert report on abatement measures) carried out. The law of statutory nuisance may have been ``immersed in undefined uncertainty'' for well over a century,35 but that is no reason for Parliament to leave it that way. 1. The author gratefully acknowledges comments made on earlier drafts of this article by colleagues at Field Court Chambers: Rosalind Malcolm, Suzanne Palmer and John-Paul Waite. Copyright # 2000 John Wiley & Sons, Ltd.
Article 2. R. v Bristol City Council ex p. Everett [1999] 2 All ER 193. 3. J. Pointing, `Problems in company prosecutions', [1999] 163 JP 704±5. 4. R. Malcolm, `Statutory nuisance: enforcement issues and the meaning of ``prejudice to health'' ', Env L. Rev. [1999], 210±221. 5. Bryan Gould, MP, described the Environmental Protection Bill during its Second Reading in the Commons as: ``. . . little more than a rag bag of measures drawn from disparate sources, many of which have been dusted down and brought to life again simply to be cobbled together to give it a lick of green paint and the impression of action and cohesion'' (Hansard, H.C. vol. 165, col. 50, January 15 1990). 6. Statutory Nuisance (Appeals) Regulations 1995. 7. Alternative action under the Act is possible such as seeking an injunction in the High Court under section 81(5). 8. R. v Carrick District Council, ex p. Shelley [1996] JPR 912. 9. Statutory Nuisance (Appeals) Regulations 1995, 2(5). 10. Brand v Hammersmith Railway [1867] QB 223. 11. Kirklees MBC v Field and Others [1998] Env LR 337. 12. Network Housing Association Ltd v Westminster City Council [1994] Env LR 176. 13. Salford City Council v McNally [1975] 2 All ER 860. 14. The common local authority practice of serving a vague notice and attaching a detailed schedule to it, which the recipient is told does not form part of the notice but merely constitutes ``advice'', is to be deplored. The enforceability of the schedule is in doubt where it does not form part of the notice and there seems to be no statutory power to serve a schedule other than as a part of a notice. 15. [1975] 2 All ER 860. Although the practice stated in this case still applies, the system of enforcement in the 1936 Public Health Act was more complicated than in section 80 EPA and had an extra stage. In the 1936 Act (repealed in the EPA) the court made a nuisance order to abate the nuisance if it was satisfied that the nuisance was proved. The court had a wide discretion as to the terms of the nuisance order and need not have followed the words used in the abatement notice [McGillivray v Stephenson [1950] 1 All ER 942]. 16. The local authority has no express power to oblige the ``nuisance offender'' to undertake and pay for the expert advice that may be needed before the notice is drafted. Judicial comments in Sterling Homes v Birmingham City Council [1996] Env LR 121 suggest that there is considerable sympathy for local authorities having to go to the expense of paying for expert reports when serving specific works notices. 17. SFI Group plc ( formerly Surrey Free Inns plc) v Gosport BC [1999] Env LR 750. 18. Surrey Free Inns Plc v Gosport BC [1998] LGR 369. 19. Budd v Colchester BC [1999] JPL 717. 20. Kirklees MBC v Field and Others [1998] Env LR 337. 21. Sterling Homes v Birmingham City Council [1996] Env LR 121. 22. Network Housing Association Ltd v Westminster City Council [1994] Env LR 176. 23. Budd v Colchester BC [1997] Env LR 128. 24. Sterling Homes v Birmingham City Council [1996] Env LR 121. 25. R. v Wheatley [1885] 16 QBD 34.
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Article 26. Surrey Free Inns Plc v Gosport BC [1998] LGR 369. 27. Budd v Colchester BC [1999] JPL 717 (CA). 28. Statutory Nuisance (Appeals) Regulations 1995, reg. 2(2)(c). 29. Ibid., reg. 2(2)(e). 30. R v Bristol City Council, ex p. Everett [1999] 2 All ER 193. 31. Budd v Colchester BC [1999] JPL 717. 32. R. Malcolm, `Suing in private nuisance: the rights of the property owner', in: Contemporary Property Law
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Env. Law Mgmt., 12(2) Mar±Apr 2000 (ed. Paul Jackson and David C. Wilde), pp. 254±282, 1999. Dartmouth Publishing. 33. P. Jewkes, `Light pollution: a review of the law', [1998] JPL 10±22. 34. Food safety is another area suffering from jurisdiction problems. Cf. J. Pointing, `Food safety prosecution, due diligence and expert evidence', [1995] Tr. Law 198±203. 35. Brand v Hammersmith Railway [1867] QB 223.
Copyright # 2000 John Wiley & Sons, Ltd.
